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[2010] ZAWCHC 188
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Slabb v S (A66/2010) [2010] ZAWCHC 188 (13 August 2010)
IN THE
HIGH COURT OF SOUTH AFRICA
(WESTERN
CAFE HIGH COURT, CAPE TOWN)
Case
No: A66/2010
In the
matter between:
ALBERT
SLABB Appellant
Versus
THE
STATE Respondent
JUDGMENT
DELIVERED ON
13
AUGUST 2010
Allie,
J
[1] The
appellant was convicted in the Wynberg District Court of
housebreaking with intent to steal and theft. He was declared
to be
a habitual criminal in terms of Section 286 of Act 51 of 1977. He
now appeals against both the conviction and sentence.
[2] The
State alleged that on 27 October 2008, the accused entered through
the open door of his neighbour's house, rummaged through
drawers and
stole a cell phone, wristwatch, earrings and R100 cash.
[3] Ms
Eileen Jones testified that when her mother went outside their house
to complain about people in the neighbourhood who
had once again
kicked their ball into her yard, the accused entered her home and
stole certain goods while she was in the bathroom.
When she came out
of the bathroom, she saw the accused in her house and ran outside.
The accused also ran outside and jumped
over the fence of her house.
At that point her mother who was returning from the neighbour's
house saw the accused jump over
her fence.
[4] The
accused's version that he had asked Eileen's mother Janetta Gladys
Jones, to return the ball and offered to pay her R20
for it is
denied by Mrs Jones.
[5j The
circumstantial evidence adduced by both state witnesses seeing the
accused jump over their fence, together with the direct
observation
by Eileen Jones who saw and heard the accused in her house has not
been challenged in a way which provides a reasonable
explanation for
the accused's presence in the house.
[6]
I can find no basis for interfering with the conviction.
[7] The
accused was warned in 1995 and he knew in 2006 that he faced the
possibility of being declared a habitual criminal. The
accused has
12 relevant previous convictions which include 3 counts taken
together for the purpose of sentence. The last previous
conviction
that was not overturned on appeal was in 1995.
[8]
Section 286 of the Criminal Procedure Act provides that a court
which convicts a person may if it is satisfied that the person
habitually commits offences and the community should be protected
against him, declare him to be a habitual criminal.
[9] The
last previous conviction was at least
13
years before the commission of the offence in this case. Section 286
does not remove the court's discretion (see; S v Makoula
1978 (4) SA
763
(SWA) at 766 G and R v Swarts 1953 (4)
SA461
(A)
at 463
B-C).
[10] It
is not desirable to exercise the discretion in favour of declaring
an accused to be a habitual criminal where there has
been a long
lapse of time between the last conviction and the present one (see:
S v Makoula (supra) at 767 and S v Magakoe and
others 1975 (2) PHH
100 (A))
[11]
It is always appropriate to investigate the nature and circumstances
of the previous convictions when deciding to impose a sentence
in
terms of Section 286 (see: S v Stenge
2008 (2) SACR 27
(C)
and S v Masisi 1996
(1)
SACR
147
(0)
[12]
The
court
a quo
failed
to establish the nature and circumstances surrounding the previous
convictions.
[13]
In the circumstances I would set aside the sentence of declaring the
accused to be a habitual criminal. The appeal against conviction
fails and against sentence it succeeds.
I would
accordingly impose the following sentence:
1.
The accused
is
sentenced to 3 years imprisonment. 1 year of which is suspended for
5 years on condition that he
is
not convicted of housebreaking with intent to steal, theft or an
attempt thereto during the period of suspension.
ALLIE,
J
I agree
OLIVER,
AJ